Can You Sue a Drug Company When You Don't Know Which One Made the Pill?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:33 Thomas: Hello and welcome to Opening Arguments, this is episode 1306. I'm Thomas, that over there is Jenessa, voting rights attorney and many other things, many other very qualified and good things. How are you doing?

0:00:43 Jenessa: I'm doing pretty good. I just got back from taking the kids to Legoland, so I look forward to telling you how sick I am in a week. Oh, yeah, no, not mine. Well, yeah, yeah, you know, secret, whatever. No, niece and nephew, not mine. Hopefully you will continue to hear from me and I won't be dying.

0:00:51 Thomas: Have kids now? No, that'd be funny if all of a sudden you just dropped out. Yeah, no, I got three kids, you didn't know that, never mentioned it, yeah.

0:01:09 Thomas: I missed Disneyland, Legoland. What was it? Legoland, right? Yeah.

0:01:12 Jenessa: Legoland. Yeah, that is nearer to where we are. Not a trip across the the country.

0:01:14 Thomas: Oh boy. Yeah, Legoland. I still haven't gotten the kids out there. Is it worth it? Give me your, give me your review. I like Legos.

0:01:24 Jenessa: Four kids, yes, they just, they got to run around in a park, and there were people in the little, little Lego costumes, and there were little Lego figurines everywhere, and they loved it. And oh, and it was like trick or treat, so they got to go around and get candy. What else do you need, you're a kid, right? You asked him what's their favorite part, and they were like the playground, ground, and I was like, that's we have that already.

0:01:40 Thomas: Oh, nice. Yeah. Yep. Yep. The wrapper of the candy that, and you're like, God damn. Why did I spend all this money then?

0:01:53 Jenessa: But There was one roller coaster which Dan talked me into, and I, uh, screamed it so loud I was like, I taste blood, I think I ripped my throat in half.

0:02:04 Thomas: You and Lydia are twinsies. That's, that's my favorite thing is when I finally got her to do a roller coaster.

0:02:07 Jenessa: Hated it. Yeah.

0:02:10 Thomas: It was the funniest thing in the world. Now I think she's too self-aware of it, but like the first time I had her go on, it was the Incredicoaster in Disneyland. I got her to go on one finally. And it was like, I'm not trying to force her to do anything. Like, you know, I'm mostly, I'm just like, if you don't want to do it, you don't want to do it. But you know, it's, it's really fun. It's a really good, really good coaster. And I think the kids wanted her to do it. She finally gets on and I've never ever heard someone just scream the whole time. Like it was, I wasn't, I thought it would be like in my, you know, imagination. I was like, yeah, I know the parts that are dippy parts, you're gonna be like, ah, you know, Like whatever. But it was just like, as it started and it's an exciting coaster, she's just like, ah, like the whole time. It was so funny. Uh, I, I loved it. It was, well, just know that the people in your life really enjoyed that probably as long

0:02:23 Jenessa: Yeah. Yeah.

0:02:59 Jenessa: I No, that was Dan's favorite part, was me losing it.

0:03:02 Thomas: As you're having fun, as long as you're not actually suffering.

0:03:04 Jenessa: Have this thing where I forget that I have a fear of heights until I get up really high somewhere, and then I'm like, what am I doing, how, why, how did I I like agree to do trapeze with a friend of mine on a regular basis, and then I get up on the platform and I'm like, I hate this, what am I doing, why am I here did gymnastics with her a lot and then, like, like, this is a natural progression for adults. No more impact.

0:03:07 Thomas: That's not good trapeze what are you doing, who does trapeze, wow sure oh That makes sense. Well, uh, speaking of none of that, what, what are we going to be talking about today? Oh,

0:03:38 Jenessa: Yeah, I guess vaguely relevant, all of the semi-dangerous stuff we did, the various liabilities people can have and really winning against big corporations. We had a theme going for two episodes now of, like, Like, the little guy wins against the cops. I really loved when I was in school and we took torts. People just think about that as like, oh, you know, somebody slips and falls and sues their landlord. And like, people have these really negative perceptions of those cases. But a lot of stuff in this textbook is the little guy wins against a corporation who really injured them and did something wrong.

0:03:45 Thomas: Yeah Nice. Yeah. Yeah. Yeah. I had this vision just now of us being like, you know what? Okay. First off, Friday is the bummer. Monday. No, Matt does a good job of finding the uplifting stories. But it's like Friday is the news. So it's going to be more of the bummer Monday. Maybe it's like the uplifting, especially with the last few. And then I had a vision of you being like, huh, is there any other times the little guy is one? And then you're like Gandalf going to of that library in the beginning of the whatevers. And you're like, nope, they're just, you find like one thing. Well, one time in 1370, the little guy won. And I've got that for you today.

0:04:24 Jenessa: So Yeah. No, it's true. It's true. Yeah.

0:04:54 Jenessa: I'll keep digging them up. They're in here.

0:04:56 Thomas: Yeah, no, totally. I love hearing about the little guy who won against the corporation. I will try not to be too much of a bummer in saying that I can't believe how many times that happens. And then like the award gets severely limited by a judge and you never actually hear about that until you know you look it up and it's a bummer later but uh bummers aside this is really cool so uh we're going to talk about some folks who went up against major corporations in one

0:05:07 Jenessa: Yeah. Right.

0:05:20 Jenessa: Yeah. We got one against some drug manufacturers, including Eli Lilly and another one against mobile now known as Exxon Mobil at the time. I'm just Mobile Gas Corporation.

0:05:30 Thomas: Yeah. Would imagine they are in this, this parchment in scrolls hidden away in Gondor, I feel like Exxon is going to be one that you're going to get a lot. There's going to be a lot of suits against ExxonMobil. When you've effed over the little guy enough times, you're going to take some L's.

0:05:40 Jenessa: Yeah. Yeah. A Yeah, for sure. And this is one of them. So I'm excited for these ones.

0:05:48 Thomas: Right. Cool. Well, any voting writers? I know we're getting closer and closer. Just want to make sure we're taking that time now.

0:05:57 Jenessa: Yes, of course. Uh, we're getting closer to the time of you're going to actually be at the polls. The number one thing I'll say is if anything goes wrong, the best thing you can be doing is voting early because if God forbid something goes wrong, you could go again tomorrow. Um, if something does go wrong, uh, conflict with a poll worker, probably not your best bet. Very often they cannot solve your problem. They don't know why a bad thing is happening. They don't have the authority to fix it. What I would recommend is the absolute second you get out of that polling place, voice memo, write a note, whatever. Take notes on who, what, when, where, why, what happened, where are you, the time of day, the polling place. It puts you in a really good position if you want to file a complaint about that.

0:06:44 Jenessa: The intel I am getting, the odds of a huge issue with, like, federal troops, the ICE at the polls, is unlikely. Um,

0:06:58 Thomas: Reassuring. The The, in the intel I have, the chance of, you know, troops and ICE at the poles, not likely, not high, you know, partly cloudy kind of thing, like, nice. Yeah.

0:06:58 Jenessa: Yeah. Yeah.

0:07:09 Jenessa: It's, it's, it's not great, real threat is less that that's actually going to happen and more that that's going to scare people. And the fact that they're saying it is going to make somebody not go to the polls. It probably won't happen. Probably the best thing to do is to not spread rumors, because the biggest threat is being scared. If you do happen to see something, you can say something. Common Cause is a great group that's running hotlines. It'll be 1-866-OUR-VOTE. What you don't want to do is try to intervene. Call them. They are trained on how to intervene in things, and the acronym you can use is SALUTE.

0:07:54 Jenessa: So S is for size. How many people do you see? A, ACTIVITY. What are they doing? Are they questioning people? Are they going into buildings? Are they just milling around? L, LOCATION. Where exactly are you seeing people? U is UNIT. Is it ICE? Is it CBP? DHS? Like what are you seeing? T, TIME. The exact date and time. Timey equipment. Do they have guns? Do they have cuffs? Do they have dogs? Are they just standing there?

0:08:24 Thomas: They had to come up with an acronym for this, like, that's disturbing, like,

0:08:28 Jenessa: Yeah, this is the information they need to intervene most effectively. So if you see something, you can say something. That is the most effective thing you can do to help people is get the hell out of the way and tell the people who are trained to deal with this what exactly you saw. Odds are very good, you're not going to have to do this. But if you need it, now you know. It is a lot of letters, isn't it?

0:08:29 Thomas: Huh. Okay, okay.

0:08:53 Thomas: Did we get the full SALUTE? That's a, a lot, that's a lot of letters, so I already forgot everything you said, SALUTE. Do we need to do one more speed run, SALUTE? What is it Size. I remember that one.

0:09:04 Jenessa: Yeah. Size, activity, location, unit, who is it, time, and equipment.

0:09:14 Thomas: When did someone come up with this? Is, I'm actually disturbed that this exists.

0:09:18 Jenessa: I was first exposed to it in this election cycle because I have never needed to even have a concern that I would need to report something like this. So it's the first I'm encountering it.

0:09:22 Thomas: Okay. Yeah. Yeah. Good to know. I'm excited. Why don't we take our usual break and then we get to talk about the little guy beating corporations. So much fun. Last week, the little, I don't even want to call him a little guy. The genius is undefeated in terms of getting one over on Cops. It's not really even that. They just suck and did a bad thing. And that guy sued them properly. But anyway, I love it. Ever since that one, I'm pumped to be on that same streak. So So we'll take a quick break, support the show, patreon.com/law, get the goodies, the lot of the movies, the book club, the no ads, the everything, uh, we'll probably do, we're thinking about maybe doing like a, some kind of hang for the, for the election that's still in the, in the works. We'll figure that out. So, uh, every, everything that you need to know about any of that is at patreon.com/law.

0:09:44 Jenessa: Yes.

0:10:19 Thomas: Okay. So where are we going to start?

0:10:21 Jenessa: So I want to start with just a brief overview of some of the stats around this. There is a huge concerted effort to try to convince everybody that any of these types of lawsuits, medical malpractice, uh, personal injury, uh, anything related to car accidents, slip and fall, this is all frivolous, this is ruining our country, this is ruining our culture, this is costing so much money, and there is just like no data to support this. In fact, like the exact opposite, opposite, um, I'm sure people have heard the thing of like, oh, the McDonald's coffee lawsuit.

0:11:01 Thomas: Yeah. We went all through that in early OA.

0:11:03 Jenessa: Yeah, yeah, people are almost certainly familiar with by now, that whole thing, but it's not just like any one instance like that. There is a systemic thing going on where the number of lawsuits in the United States is actually precipitously dropping over time, it's not going up at all, pretty much across the board. I'll give you the stats in my textbook and then I looked up some recent ones. Yeah, you would think, right?

0:11:15 Thomas: Mm-hmm. That's wow. That really of the of like a specific kind or just all I mean, just the Trump administration alone. OK.

0:11:36 Jenessa: So certainly immigration and border cases, those have gone up. Border control, all of those types of lawsuits. I guess I don't know if I would call that a lawsuit, but that type of litigation.

0:11:47 Thomas: Is this like civil stuff between two people or a company? Yeah. OK.

0:11:50 Jenessa: Yeah, we're talking civil. Civil can be against the government, but most often, it's two people, two corporations, whatever. My textbook has stats from 1992 to 2001. What the changes are, and I have some more up-to-date numbers for you. It's nothing, has changed from 1992 to 2001, the overall number of civil lawsuits filed in America dropped by 47 percent.

0:11:53 Thomas: Yeah. Yeah.

0:12:14 Thomas: Why would that be? Is it adjusted for population? Because that would make it even more if it's not just raw numbers.

0:12:20 Jenessa: Don't know, actually. I'm not sure which, but yeah, the population was, went Up a little in that time period. It's about a decade there. Tort suits specifically fell 31.8%. Medical malpractice, that's the one people are really focused on, like, oh my god, that's like causing all of our health insurance to go up, it declined 14.2 percent.

0:12:21 Thomas: Huh. That's crazy.

0:12:44 Thomas: Huh. Is the bad news that people are realizing just how pointless and impossible it is to try to fight the system?

0:12:51 Jenessa: Is actually the message I would rather send. Is it's too hard to file these cases. It's too hard to win these cases. Tort cases of all state trial or court civil caseloads, all the cases that get filed, torts make up 6%. 50% is contracts, corporations fighting with each other over who owes what. It's only 6% of the caseload in our court system. The median jury jury award was $37,000 back in 2001, and today it is $27,000.

0:12:57 Thomas: Yeah. Right. Huh.

0:13:37 Jenessa: Like, people are suing less often, they are going to trial way less often, they are winning less often, and when they win, they win less.

0:13:46 Thomas: I don't have any explanation for this. What do you think?

0:13:49 Jenessa: Honestly, because they're passing laws that try to make it harder to sue people, because we have a culture that says you're suing too often, and guess, if you're worried about that, congratulations, like, the problem has been solved. You'll hear these stories, they provide an example in here of like a small business that closed because they said, oh, our liability, we've never even been sued, but our liability insurance went from six percent of our our sales to 29% of our sales. And it's like, they just closed the whole business?

0:14:03 Thomas: Yeah.

0:14:17 Thomas: So they stopped having sales? No. I mean, like, their sales went down, and that's why the percentage, uh, increased so much.

0:14:25 Jenessa: Probably a lot more likely, right? Because they're like, well, meanwhile, we consulted an expert. And the estimate is that tort liability comprises at most 2% of the total cost of U.S. goods and services. This just isn't the problem. It's not why your health insurance is expensive. It's not not why things are expensive. It's not why you can't get a job. Oh, I'd have to pay for liability insurance. That's not what's happening. It's just fundamentally not an issue. We're not really more litigious. If anything, we should be more litigious. We're making it too hard for people.

0:15:05 Thomas: Yeah.

0:15:05 Jenessa: So the good news is, we can talk today about times when the court made it easier for people because they really needed to, because it was hard to win until these cases.

0:15:16 Thomas: Awesome.

0:15:17 Jenessa: I have one for you from California in 1980.

0:15:23 Jenessa: There's a drug, DES, I don't know what it stands for. It's a female estrogen hormone, like a synthetic hormone thing. The FDA approved it, it as a miscarriage preventative. I don't know how well it worked for that, but what it did do is give those babies cancer, so that's not great, um, but the thing that becomes a problem here, specifically, female offspring of mothers who took the drug are prone to cervical and vaginal cancers one or two decades after birth.

0:15:40 Thomas: No, that's awful. Oh, Wow.

0:15:57 Jenessa: Nobody noticed for like a really long time.

0:16:01 Thomas: That's a ways, yeah. Must have been hard to, yeah, I imagine, people even figuring that out, that's such a random, disconnected thing. Yeah.

0:16:09 Jenessa: You know, this would be a very interesting, like, science topic of just, how did anyone even notice when there's such a lag there, somebody put it together that that this was an issue, and it gets discontinued, and, you know, they lose their approval, and they say, stop taking this, obviously. Um, we have a really big problem for our plaintiff here. When you go to the pharmacy, almost never are you getting a brand name drug. If you get the brand name drug, it's under patent, and it costs $7 billion.

0:16:41 Thomas: Paying a lot, yeah, I would know, I've had that sometimes. Big difference. I

0:16:44 Jenessa: Yeah, I've had a couple. When you are getting the generic, there's like 15 different companies making the drug. And very specifically, drug companies know, the patient knows, the pharmacist knows. Pharmacists are going to just dispense whatever they got. It's a generic drug, right? Like the formulation is legally required to be the same. You It has to be the same active ingredient in the drug. Doesn't really matter who the manufacturer was.

0:17:18 Thomas: Just No.

0:17:19 Jenessa: Like, So every once in a while I get home and my pill looks different, and I do double check that I didn't accidentally get the wrong prescription filled, but it just means, you know, my pharmacy ran out of whatever pill and they got it from a different manufacturer and it looks different now, but it's the same drug. Years later, the plaintiff, who is not even the person who took the drug anyway, has to ask their mother, well, who was the manufacturer, how the hell should they know, it's like unknowable, it's not like, oh, it'd be hard to figure it out, it's like, like, fundamentally unknowable.

0:17:19 Thomas: Yeah.

0:17:57 Thomas: It were me, I would still have a bottle that had like three of them. I'd be like, oh shit, were these expired? Damn, am not for like miscarriage, like pills, if it was, yeah. Am I still gonna miscarry? No, yeah, no, don't, probably don't need those.

0:18:01 Jenessa: Yeah, yeah, 20 years later, and and then you'd have to trace it back and figure out who manufactured it.

0:18:17 Thomas: Gonna be tough.

0:18:18 Jenessa: And realistically, depending on how long you took something, you know, probably less likely with a miscarriage drug, but like, you know, if it was like my buy migraine meds. I haven't taken that for years. I've probably taken it from like 10 different manufacturers by now.

0:18:33 Thomas: Does that matter when they're all making the same medication?

0:18:38 Jenessa: If you had like a class action, hypothetically, it would be easier, but either way, what are we going to need for negligence? Um, cause they're not alleging like you tried to kill me on purpose. Um, it's going to be, uh, you had a duty of care to a person, you breached that duty of care. By breaching it, you caused my injury. Then I have to prove the damage done, you know, to get whatever amount of money.

0:18:50 Thomas: Yeah.

0:19:06 Thomas: Quick clarification, just to make sure, I think, I, I know the answer, but just in case, it's not as though, the point I was getting as is, it's not as though like some manufacturer made a bad batch, it's not like something's tainted, it's like fundamentally this drug wasn't good, right? Yeah.

0:19:17 Jenessa: Yes. Right. So no matter who she took it from, this is a problem. There's not a good manufacturer or whatever. Causation is the issue. Which person is liable to this plaintiff? So for example, one drug manufacturer did get out of it because they proved they stopped manufacturing this drug before the plaintiff was even conceived, like more than nine months before her birthday. So I literally can't be the one who caused the damage to you.

0:19:28 Thomas: Oh, Wow. Wow. Lucky them, yeah.

0:19:55 Jenessa: Other than them, she just named like 10 major manufacturers. It's physically impossible that they all caused the damage. It's almost certainly only one of them, or maybe none of them. It's entirely possible a really minor manufacturer, they might not even be in business anymore, made those pills for a couple of months and then went out of business, so it's possible every named plaintiff is not the one who caused her injury.

0:20:05 Thomas: Oh, Man.

0:20:24 Jenessa: What are you supposed to do? Like, under normal negligence rules, she has to prove causation, it's the burdens on the plaintiff to prove this, thing they tried was this concert of action thing. Like, oh, you all were in on it, you all work together. That's not going to work here at all.

0:20:42 Thomas: Of tough with negligence, I think, right?

0:20:44 Jenessa: Exactly. You could hypothetically be like all in on it with negligence. If you were like, we know the product's dangerous, and not only am I going to keep selling it, but you're going to like help me keep selling it, and we both know about the problem, and you were part of the selling, you could kind of do that, but it's, it's a tough sell on its own, and here they tried to say like, well, they all sort of relied on each other's testing, you know, not every one of them did thorough drug testing, once the drug was tested, they relied on each other's assertions that it was safe, and none of them, them should have done that, they knew or should have known the safety testing wasn't good enough before they were already marketing it, that's the allegation.

0:20:44 Thomas: Yeah, oh.

0:21:37 Jenessa: They act in concert, though, they, the judges say, no, application of this concept to this situation would expand the doctrine far beyond its intended scope, it would render virtually any manufacturer liable for the the defective products of an entire industry. It's too much. It's too far. But they try something else. There's this thing called Summers liability. It comes from a case, Summers v. Tice, this sounds like it was made up for a torts textbook, but it's a real case. A person standing there in the woods, I presume, and two hunters from either direction both shot at the plaintiff.

0:22:19 Thomas: No, and they don't know who got them. Wow, but

0:22:21 Jenessa: Yup. One of them hit the plaintiff right in the eye and caused an injury. So whodunit,

0:22:31 Thomas: That's interesting because it's not like they both necessarily like, it's one thing with the drug where it's like, yeah, you're both selling the drug that's bad. This one's like, well, I'm sure one guy would be like, I wasn't going to hit anybody. That asshole hit somebody, you know?

0:22:43 Jenessa: One of them definitely didn't hurt the plaintiff. So what do you do? What they ultimately said in that case was, was, okay, we said the burden is on the plaintiff to prove which one of you did it, and they just like fundamentally are not going to be able to do that. Two people shot a gun at the same time, a bullet hit them. To, how could they do this? And really, it's the defendants who have access to the information you need to figure this out. Now, I, plaintiff, all I know is what I saw, and I have one eyeball now. Like, I can't tell you much, the two defendants, like, one of them probably knows they did it, and one of them probably knows or thinks they know they didn't, but would have a hard time proving they're not the one who did it, but both of them together have access to the information they need.

0:22:46 Thomas: Yeah.

0:23:37 Jenessa: If you make it so the plaintiff has to prove which one did it, you're almost incentivizing the defendants to just point the finger at each other. What they do in a situation like that, where definitely one of you hurt the plaintiff, for sure, it's going to be really hard to figure out which one. And you both acted like Like, one of you is the cause. You both had a duty and breached it. You shouldn't be shooting at people. We're going to put the burden on the defendants at that point.

0:23:45 Thomas: Yeah. Yeah.

0:24:09 Thomas: Yeah. That's what I would think. You'd want to be like, all right, for the purposes of this plaintiff thing. Yeah, you're both whatever. Whatever. And then maybe if there's like a lawsuit later to figure out between them who's who's liable, maybe that's a different story. But you don't want to like make it so the plaintiff who's in the disadvantaged position has to somehow know ahead of time.

0:24:13 Jenessa: Right. Right.

0:24:30 Thomas: Otherwise, you're just effed and you don't get anything.

0:24:33 Jenessa: Exactly. Once the plaintiff can prove they both had a duty to the plaintiff, they both breached it, at least one of you caused the injury, and here's my damages. We're going to shift the burden onto the defendants. If you can prove you're not the one who did it, you can get yourself out of it. So think of that drug manufacturer: I definitely didn't manufacture the pill your mother took.

0:24:57 Thomas: Right.

0:24:58 Jenessa: I know I didn't do it, okay, fine.

0:25:01 Thomas: So you still get that opportunity like what? Before trial.

0:25:03 Jenessa: Yes. It could be before or during trial, um. You could try to prove it as effect to the jury, or yeah, if it's something crystal clear like that, you could probably do it as a motion to a judge. No reasonable jury could find that I caused this problem. Look at this record.

0:25:07 Thomas: OK. Right. Gotcha. Which I, I was shooting a bow and arrow, so it was not even, yeah, yeah, huh,

0:25:23 Jenessa: Right, right. Yeah, there you go. And it's a bullet and then You're out of it. Right. But if you can't establish which one of you did it, you will be jointly and severally liable. And I can go after one or both of you. And it's your, like you said, it's your problem to figure that out between the two of you. We apply this to the drug companies, not exactly, but we're going to come up with something very similar, market share liability. This

0:25:55 Thomas: Curious for the why not exactly,

0:25:57 Jenessa: In that case, um, people shooting the gun, um, definitely, definitely one of the two of you did it, and one of the two of you probably knows you did it and has access to the information. What's a little different here, like you didn't name every manufacturer ever, it's possible you didn't even name the person who hurt you, it could be all the defendants are innocent, they're not really. Right?

0:26:19 Thomas: Also, I don't know if this matters, it also could be multiple of them if you got from different manufacturers, yeah, okay,

0:26:29 Jenessa: So it's going to be really hard to figure that out for anybody. And then, so on the one hand, it's very similar to Summers because this plaintiff can't figure out who did it, and it's not their fault, the plaintiff did not do something wrong or fail to preserve evidence or whatever, or you know, you can't put the burden on the plaintiff to figure this out, the plaintiff can't figure this out for no fault of their own and really because of the fault of the company, you know, the company did the conduct of making the drug and letting it be generic and unidentifiable, so I can't identify it.

So she is similar to Summers in that way, but in the other way, unlike the hunters who fired the gun, where like one of them probably knows they're the one who shot her, here also the drug companies probably don't know, and maybe can't know, even if they all put in their best effort they really might not be able to figure out which one of them gave her the drug. It's a little different, it's, they do have better access to information than the plaintiff, but not necessarily good access to information, they might be in the exact same position. What they end up saying is, feel like you will appreciate this

0:27:02 Thomas: Yeah, Market share, yeah, in the name.

0:27:55 Jenessa: "Our contemporary complex industrialized society, advances in science and technology, create fungible goods which may harm consumers and which cannot be traced to any specific producer producer. The response of the courts can be to either adhere rigidly to prior doctrine, denying recovery to those injured by such products, or to fashion remedies to meet these changing needs." You know what, we're gonna make it work, we're not gonna say hey, go to your legislature and figure it out, we're gonna figure it out for you. And they make a rule that is a modification, justification of the Summers rule, where they say in this market share thing, you have to name as plaintiffs a substantial share of the market.

0:28:43 Jenessa: So if one person sells 90% of the pills, you just name them and you're good. Or if it's like 50 manufacturers, you are going to have to name a a lot of them to get up to a certain substantial share. You do that, how can we apportion fault, there's probably a bunch of people here who didn't do it, well, but they did hurt somebody, so, you know what, if you make up 70% of the market, you owe 70% of the damages. And you're 10% of the market and you owe 10% of the damages, because we do know you made a drug that gave gave people cancer. And there's about a 10% chance you gave her cancer. So you owe 10%. There we go. Done.

0:29:06 Thomas: Yeah. Yeah.

0:29:25 Thomas: And like who got cancer or not is also a matter of luck, you know, somewhat, so could have just as easily been, know, someone else. I this feels like something that would make more sense is like, you know, the attorney general for the United States or something uh would handle it, and do get a settlement and then everybody who ever took it, you know, would get some proportion of the, the whatever. The other point I want to make is, how granular do you have to get with the market share thing? Is it market share in the country, is it market share in that person's town where they bought it, like, are you trying to trace it to that literal person, or are you trying to take the whole market, you know, in this country, globally, what, you know, the, by the state, like, how, how, how, uh, how fine grain do they get?

0:29:29 Jenessa: Yes. Right. Right. Then an individual, You know, I don't actually know that. I would think probably if we're at like this level of an individual plaintiff, you're going to be able to tailor to you. So if you know, oh, there's tons of people who made this drug but only one of them sold in my town, well, you might not know that, but they do, so they can exonerate themselves by sharing with you who the proper named plaintiff would be. Um, I would imagine you'd be able to localize it like that. If you knew for a fact there's a manufacturer who sells it in China but not in the United States, naming that person would border on frivolous, like, I think it would cross into just a completely frivolous claim, you know, they're not responsible, you know, they're going to get themselves out of this immediately. But I, as long as somebody plausibly could have been in the market, in doubt, name them. Yeah, and really, the best bet here was they named Eli Lily and five or six other companies, produced 90% of this drug that was on the market.

0:30:30 Thomas: Hmm.

0:31:16 Jenessa: It's held up, you obviously this is California law, your state, well, you are from, you, The Royal you, the audience, your state may do it differently, but essentially this concept holds up that when we have some product that through no fault of the plaintiff, the plaintiff cannot identify who gave it to them, the and defendants really can't identify it either, but they all equally made the same deemed defective product, they can all just be held liable by their market share. We are not going to put plaintiffs in a position where you just can't recover because there's so many people who could have hurt you. I guess nobody hurt you. We're not going to do that to people. So a big win for the little guy on that one.

0:31:21 Thomas: Yeah. Yeah. Yeah. Wow. How much do they get?

0:32:10 Jenessa: This one was just remanding back where the trial trial court was like, yeah, with the existing framework, we literally cannot help you. You have to, you have the burden of proof for which one of them gave your mom the pill and you can't prove it. So goodbye. And then the appellate level said the same thing. And there's the California Supreme Court saying, no, no, no, this can go to trial. You can actually sue these people. So I'm going to bet this one settled after that. Once they were told you're going to, oh, market share.

If you lose this, all of a sudden you are highly incentivized to settle on that, uh, Got another one for you where this one is mainly used to illustrate the point of like, what is gross negligence, and they often leave out of the textbook you can also use this to illustrate how a settlement credit works, um, which sounds bad. It's not gonna totally screw this case over, but this is Mobile v. Ellender. We're in Texas in 1998 here. This case is interesting, um, it's uh, sad. Actually, really sad, um. They're gonna give us the fact pattern as we go through here, like mixed in with the legal standard. So a quick background, and then we'll, we'll learn more about how Mobile screwed this up. Eli Ellender worked periodically as an independent contractor at

0:32:33 Thomas: Nice. Yeah. Yeah. That makes sense.

0:32:49 Thomas: That makes sense.

0:33:43 Jenessa: Mobile's Beaumont Refinery and Chemical Plants. Millwright, I don't even know what that job is.

0:33:51 Thomas: Huh. They run a mill.

0:33:54 Jenessa: I don't know. It sounds so old timey, but this was 1963.

0:33:58 Thomas: Yeah. The milling logs.

0:34:00 Jenessa: Can't be that, because there's gonna be a whole bunch of benzene around, so something gross, um, 1963 to 1977 he worked for them and he had high exposure to benzene. He gets diagnosed with a form of leukemia. He dies in '89. His surviving family is bringing this lawsuit and saying it was negligence, and in fact gross negligence, which you might also sometimes, that's termed reckless, uh, as opposed to, there's like negligent, reckless, and then intentional behavior. So gross negligence, recklessness, fits right in the middle there. They wanted the trial court $622,888.97 in compensatory damages.

0:34:46 Jenessa: They really get that granular when it's like, okay, I had this many medical bills and funeral expenses and this and this and this and this. And then they got 6 million in punitive damages, uh.

0:34:59 Thomas: Nice, that's where they don't have to be so granular, that's like, uh, throw a number at it.

0:35:03 Jenessa: Yeah. This is the, you're a big jerk, number, uh, and you need to pay pretty

0:35:10 Thomas: How big of a jerk? Six million dollars of jerk.

0:35:13 Jenessa: Much, um, there are like rules, there's a limit, but there's flexibility there in a way that there isn't with compensatory. You are being compensated for something. Mobile is going to try to appeal this and say there wasn't sufficient evidence, so we're going to get to hear a judge say why you're such a douchebag. Texas Supreme Court, what are they going to say here? They're going to give us a definition for gross negligence in their jurisdiction, which is pretty similar to other jurisdictions. First, we have to say viewed objectively from the actor's standpoint. So this is not what they actually thought, but what a reasonable person would think. From their standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others.

0:35:16 Thomas: Dang.

0:36:03 Jenessa: And number two, actual subjective awareness of the risk, but nevertheless proceed in conscious indifference to the rights or safety or welfare of others.

0:36:15 Thomas: That is gross.

0:36:16 Jenessa: Yeah, regular negligence will have a reasonableness standard that's like more objective. And depending on the rules and the circumstances, you might not need that subjective knowledge. It can just be, well, a reasonable person would have known you know, you shouldn't have spikes at the bottom of the ball pit. And we don't have to question like whether you subjectively knew about it or probably have to know they're there, but you don't have to, we don't have to inquire into like whether you knew that was bad to get to gross negligence. Well, yeah, who doesn't know that's bad, right? But we're going to have to prove it.

0:36:52 Thomas: I thought spikes were good for people.

0:36:56 Jenessa: So as they go through and try to say, well, we, we didn't know, we, there is evidence from Mobile's viewpoint, so making sure we're not just saying like documents exist, but they knew about it during the period Ellender worked for them. The extreme degree of risk associated with benzene exposure was common knowledge in the petrochemical industry. They were a member of the National Safety Council, which as early as 1926 said, the most characteristic pathological effect of benzene is perhaps its destructive influence on the cells of the blood and the blood forming organs.

0:37:37 Thomas: But we didn't know, you need those, we didn't know, you were my doctor, I don't know how much you use blood and organs.

0:37:44 Jenessa: They, they stipulate to being a member of this group as in early as 1922. This announcement was in 1926. In 1948, the American Petroleum Institute reported benzene could cause leukemia, and the only absolutely safe concentration for benzene was zero. So there's no safe exposure here. Obviously, there's some number that is like, you're probably not going to get sick,

0:38:11 Thomas: Like, that's also true, true for any substance on earth, like, except air.

0:38:15 Jenessa: But some substances were like, oh, if you keep your exposure under X, like probably nothing will happen. This one's like, hey, it's so dangerous. There's just, there's no safe number. If we find it, it's bad and you need to not be anywhere near it. That report came out in 1948. 1948 Mobile stipulates they have been a member of that group since 1919. Their medical director testified he believed Mobile had knowledge of benzene hazards in the 50s. This guy worked for them in the 60s and 70s. Record shows other petrochemical companies had knowledge of this, you know, it's circumstantial evidence, but that's a totally admissible towards this purpose. There is evidence his benzene exposure was dangerously high. Their Mobile's own samples taken at the plant where Ellender periodically worked showed dangerous levels of benzene exposure, many times higher than the OSHA recommendation.

0:38:27 Thomas: Oh,

0:39:17 Jenessa: Many other co-workers testified that workers used benzene furnished by Mobile to wash their tools and hands as often as daily.

0:39:26 Thomas: Boy. Yikes. Why?

0:39:30 Jenessa: Mobile gave them just a barrel of benzene and was like, wash your hands in it.

0:39:33 Thomas: I thought it was gonna be like accidental benzene exposure, not like, here, uh, thirsty, everybody get some, it's the, what are we doing?

0:39:46 Jenessa: This is how you get to gross negligence. We knew you shouldn't be anywhere near it, and we gave it to you and said, wash your tools in it. Please. Please.

0:39:48 Thomas: Yeah. How clean do you need your tools to be, and how much cleaner is benzene than whatever the other thing is, like, that's mind-blowing.

0:40:04 Jenessa: Your guess is as good as mine. What are these tools? Why do they have to? There has to be some other option. A toxicologist testified that his exposure was, quote, substantial, significant lifetime exposure would have put him at increased lifetime risk for leukemia. Now, this is interesting. For the gross negligence on a corporation, corporations aren't people. They don't do things. People do things. So you have to prove that, they keep saying their vice principal, it's your principal, your agent, somebody acting on your behalf had to do the thing in such a way that is directly attributable to you. They're gonna try to argue, like, to the extent that this was happening, it wasn't like us doing it, and that is gonna get shot down completely. You provided the chemical and

0:40:58 Thomas: Like, like if a supervisor brought some benzene from home and was like, hey guys, this is your tools, will never be cleaner, you want to see, you want to be able to see your face in these tools, your reflection in these tools, use this.

0:40:59 Jenessa: And sure, yeah, it's just not going to work. B. Durham, a Mobil industrial hygienist, testified, although mobile monitored its employees, it had an unwritten practice or policy to not monitor the contract workers. Yeah. So they were checking that their own employees were not getting exposed to benzene. And then when they had these short-time, like, part-time, short-term contract shift workers, they were like, not only are we not going to check, one doctor tried to check on them and was told to stop. Do not be on the lookout.

0:41:27 Thomas: Like

0:41:51 Jenessa: Out.

0:41:51 Thomas: They thought that would introduce like liability or something.

0:41:54 Jenessa: Well, and here we are. Probably is the thought.

0:41:55 Thomas: Yeah. That one weird trick didn't work.

0:41:59 Jenessa: No, it super didn't. Once you know about a danger, you're not going to get away with it by being like, we don't know how bad it is for that guy though. You know, so that didn't work at all. This is evidence from which which the jury could reasonably infer mobile had a company policy of not monitoring contract workers for benzene exposure, not warning them of the dangers and not providing them with protective gear. They gave their own employees neoprene gloves and gas like face masks and did not provide that to the contract workers. So like you have the equipment, the, like the PPE,

0:42:22 Thomas: Yeah. Yeah.

0:42:39 Thomas: They did, and they're like, oh, I'm gonna clean my gas mask with benzene on the Ins, the inside is so shiny, cool.

0:42:46 Jenessa: The PPE is right there, and it's available to all our other employees, but not you. How is that not ultimately purposeful? Essentially, is what's going to end up happening. And then the same thing for the subjective element, so that's all to the objective, like, no reasonable person in their position could not have known, that's going to get you negligence. And then for the subjective element, their own regional medical director testified, even before he became medical director, he knew benzene-caused, among other diseases, aplastic anemia, he knew washing your hands and tools in benzene was hazardous, dis, and he and Dr. Stewart, a physician working directly under him at the Beaumont refinery, implemented a plan to see that noxious agents, including benzene, were not being used in a manner that was deleterious to employee health, and then didn't apply that to the contract workers.

0:43:46 Thomas: Cool, cool.

0:43:47 Jenessa: Definitely you also had subjective knowledge, you were putting out pamphlets about what's the a safe and unsafe way to do this and not giving it to them, you had doctors who were trying to take care of this and you didn't do it for the contract workers. So essentially this idea that like there wasn't sufficient evidence, the, the Texas Supreme Court is like, absolutely, get out of here.

0:44:13 Jenessa: The one place where it does go back to the trial court is this idea of a settlement credit. So they named multiple defendants here, not just mobile and everybody else settled and they settled for $500,000. Obviously they won a lot more than that at the trial here where they got 6 million impunitive damages. There is a thing that can happen for the the compensatory damages called a settlement credit. If a jury of your peers finds, usually to a preponderance of the evidence, that the compensatory damages, the damages you racked up were $100,000, let's say it's me and Lydia that you sued, and you already settled with me for $20,000 of compensatory damages, maybe the jury awarded $100,000, you can only get $80,000 from Lydia because you can't get double paid out.

0:44:20 Thomas: Hmm.

0:45:14 Jenessa: That's the compensatory part. You've been compensated. You don't get compensated even more. Hypothetically, if all $500,000 of that settlement was meant to be compensatory damages, Mobile could subtract that out of what the jury said your compensatory damages are. X, everybody who harmed you in total owes this. Well, we awarded you 600 and change, you already got 500, you could cap it there. The critical thing is that doesn't affect punitive damages. There is no, oh well, you know, you already settled for punitive damages with other people, punitive is a punishment.

0:46:02 Jenessa: It goes back to figure out, hey, was that 500,000, was it all for compensation, was some of it for punitive, people don't normally say that in a settlement. Like Normally the thing in the settlement is, I'm not admitting any guilt, what are you talking about punitive, you're not punishing me for anything, right? At most they could reduce that verdict by 500,000 out of the 622,000 for the compensatory, the six million punitive stands, uh, yeah, the, well, the little guy died, but then his family won.

0:46:13 Thomas: Oh, cause the settlement. Right, right, right. Yeah. Yeah.

0:46:36 Thomas: Oh, you have great bedside manner. Let me, let me just say, well, it's great. Oh, he died, but you know,

0:46:43 Jenessa: Yeah. Yeah. No, I think it's a good one in the long run because what it primarily shows is how do you get punitive? How do you get to gross negligence? What does that really look like? What's the difference? This is the difference. You knew this was a dangerous chemical that nobody should get exposed to. They shouldn't even be breathing it. And you were like, Like, go ahead and wash your hands in it. And also, I'm telling all the other employees not to wash their hands in it. You're a step below just committing a murder on purpose.

0:47:22 Thomas: Yeah.

0:47:23 Jenessa: That's what that looks like. If you need to differentiate it from plain old negligence, this is it.

0:47:29 Thomas: So the settlement credit thing I didn't totally get. Was that like a barrier to, so were they able to say because they held out longer, or like, which direction of that is good or bad?

0:47:39 Jenessa: It can be, uh, bad for plaintiffs in the sense that your compensatory damages are essentially, this will vary by state, your compensatory damages are essentially capped once they say, "Oh, between medical bills and lost wages and pain and suffering, you are entitled to four hundred and $450,000." You're not entitled to $450,000 plus whatever the other guy settled for.

0:48:10 Thomas: Yeah.

0:48:11 Jenessa: So we can apply the settlement credit to whoever decided to fight you in court over it. If nobody had settled, if you had gone to trial, hypothetically, you should have still gotten the same number. Either way, the jury would have said $450,000, right? And then they would have apportioned how much of that is owed by defendant A, and how much is owed by defendant B. If defendant A settles with you, that shouldn't mean 100% of it is owed by defendant B and also defendant A paid you.

That's The way to think of that, the way to think of it from a lawyer's perspective, is think very carefully before you settle early. Because if you get a big settlement early and you want to keep trying to fight with the defendant who won't settle, the defendant who won't settle, you might go through a trial, and if they say your compensatory damages or $100,000, and defendant A already settled with you for $200,000 in compensatory damages, congratulations, you got absolutely nothing out of that trial. So that can be an issue for people. Here, it didn't touch the punitive, and that's the important part. That's $6 million in punitive damages stands.

0:48:42 Thomas: Yeah. Okay.

0:49:27 Thomas: Right, well, two instances where, uh, the corporation actually had to pay. Hopefully, let's not follow up and see if they actually paid. I don't want to know. Or if you know. I

0:49:37 Jenessa: Tried, but it's in every law school textbook. So when when I Google it, everything is the cheat sheet for the kid who doesn't want to read it and has to go to class. So like, I can't find, I was like, what, what happened though? What happened to Elendor? And it's just impossible. It's buried in the internet somewhere. I don't know.

0:49:48 Thomas: Think I think these companies should have to put in their advertisements like how many times they've been found guilty of gross negligence. I feel like we should all

0:50:08 Jenessa: I would love that so much. Oh, just have to link to it on the bottom of your website.

0:50:11 Thomas: Know that, yeah. Every ad, like, instead of, like, side effects for drugs, it's like how many times they've been found. Yeah, that would be a better world.

0:50:23 Jenessa: That would be great. It really would.

0:50:29 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky, at OpenArgs. But most of all, please share the show. Thanks for listening.

0:51:01 Jenessa: You know, you shouldn't have spikes at the bottom of the ball pit.

0:51:04 Thomas: Thought spikes were good for people, I already forgot everything you said, would imagine they are in this, this particular, these, these, this parchment in, uh, in, in, not, not Eisen, Eisen, not Eisengard, what's the, that's the bad one, what's the city, uh, No, Gondor, Gondor, Gondor, But isn't there a name of the city, Minus Me as Tirith or something thing. Is that what it is? Yeah. Well, I'll say Gondor will be more accessible.

0:51:19 Jenessa: Oh, where did he go? Yes. Yeah. No, I think he did. Yes. Correct. Yes. Yeah. All I know is what I saw, and I have one eyeball now.